Order.- The three petitioners were accused in C.C.No. 184 of 1965, in the Court of the Judicial Magistrate, First Class, Gokak. The case was instituted on a private complaint by the complainant-respondent against them for offences under sections 323, 504 and 506 of the Indian Penal Code. The learned Magistrate, by his order dated 27th May, 1965, discharged them under section 253 (1) of the Code of Criminal Procedure. The complainant preferred Criminal Revision Application No. 65 of 1965 in the Court of the Second Additional Sessions Judge, Belgaum. The learned Sessions Judge, while disposing of the revision application, set aside the order of discharge, and directed the Magistrate to frame a charge and dispose of the case according to law, and it is the correctness of this order that is being challenged in this petition by the three accused. Mr. B.V. Deshpande, appearing for the petitioners, contends that the learned Sessions Judge, while exercising his powers of revision, had no competence to direct the Magistrate to frame a charge and dispose of the case according to law." All that he could do, he says, if at all he was inclined to interfere with the order of discharge, was to act under section 436 of the Code of Criminal Procedure and direct the Magistrate to make a further inquiry into the case against the accused who have been discharged, but he could not direct the Magistrate to frame a charge and dispose of the case according to law. He, therefore, contends that the order is clearly illegal and is liable to set aside. Mr. K.I. Bhatta for the respondent-complainant, contended that the direction of the learned Sessions Judge to the Magistrate to frame a charge and dispose of the case according to law, could not be sustained. However, he contended that the view taken by the learned Sessions Judge that the learned Magistrate should not have discharged the accused under section 253(1) of the Code of Criminal Procedure, is correct, and therefore, this Court may treat the order of the [earned Sessions Judge as one under section 436, Criminal Procedure Code, directing the Magistrate to inquire into the case. The order of the learned Sessions Judge directing the Magistrate to frame a charge and dispose of the case in accordance with law, is clearly wrong. The order of the learned Sessions Judge directing the Magistrate to frame a charge and dispose of the case in accordance with law, is clearly wrong. If a Sessions Judge is inclined to interfere with the order of discharge made by a Magistrate in exercise of his powers of revision under section 435, Criminal Procedure Code all that he could do is to act under section 436, Criminal Procedure Code, and direct the Magistrate to make a further inquiry into the case of the accused who have been discharged. It has been pointed out by the High Court of Madras in Nanjabba v. Periakkal1, that the learned Sessions Judge has no jurisdiction, in setting aside an order of discharge, to direct that a charge be framed against the accused and all that he had got the right to do is to direct a further inquiry. Therefore this order of the learned Sessions Judge directing the Magistrate to frame a charge and dispose of the case in accordance with law, cannot be sustained and must be set aside. The reason which impelled the learned Sessions Judge to interfere with the order of the learned Magistrate is that the Magistrate, at that stage, should rot have scrutinised the evidence, but be should have framed a charge against the accused under section 254, Criminal Procedure Code, when the evidence prima facie showed that a charge could be framed against them. The question, therefore, is whether a Magistrate, while discharging an accused under section 255(1) of the Code of Criminal Procedure, can or cannot consider and evaluate the evidence. It is to be seen that Chapter XXI of the Code of Criminal Procedure deals with the trial of warrant cases by Magistrates. Section 251-A provides the procedure to be adopted in cases instituted on police report, whereas sections 252 to 259 provide for the procedure to be adopted in cases instituted otherwise than on a police report. In the present case, the case has been instituted by the respondent filing a complaint. Therefore the Magistrate has to follow the procedure in the instant case as laid down by sections, 252 to 259, Criminal Procedure Code. In the present case, the case has been instituted by the respondent filing a complaint. Therefore the Magistrate has to follow the procedure in the instant case as laid down by sections, 252 to 259, Criminal Procedure Code. Now section 252, Criminal Procedure Code, enables the Magistrate, when the accused appears or is brought before him, to proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. Sub-section (2) of this section further enables the Magistrate to ascertain from the complainant the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and to summon them to give evidence before him if he thinks necessary. Section 253(1) states that if, upon taking all the evidence referred to in section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Sub-section (2) of this section also enables the Magistrate to discharge the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Thus section 253 empowers the Magistrate to discharge the accused. Under section 254, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. It could, therefore, be seen that, under this section, a charge could be framed against the accused if the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence. The grounds for presuming that the accused has committed an offence, must be grounds furnished by the evidence on record. Therefore this section and section 253 must be read together. Sub-section (1) of section 253 enables the Magistrate to discharge the accused if he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction. Therefore this section and section 253 must be read together. Sub-section (1) of section 253 enables the Magistrate to discharge the accused if he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction. Therefore the Magistrate has got to find whether there is any case made out against the accused on the evidence taken by him under section 252, Criminal Procedure Code and the examination of the accused, and the Magistrate can record a finding only after consideration of such evidence, Therefore, it appears to me that it is competent for the Magistrate to consider the evidence in order to find whether a case against the accused has been made out which, if unrebutted, would warrant his conviction. In Amodini Dasee v. Darsan Ghose1, the High Court of Calcutta set aside the order of discharge made by the Magistrate without consideration of the evidence, and directed him to dispose of the case after hearing the argument with reference to the evidence already on the record. This would show that the Magistrate must apply his mind to the evidence on record before he makes an order under section 253 (1), Criminal Procedure Code. Therefore, the view taken by the learned Sessions Judge that the Magistrate should not have, at that stage, considered the evidence led by the complainant to sustain his complaint, but, if, on the evidence, before him, there was a prima facie case, be should have framed a charge under section 254, Criminal Procedure Code and then proceeded with the trial, is not a correct view to take. It is to be noted that under Chapter XVIII of the Code of Criminal Procedure, in cases which are exclusively triable by a Court of Session, the Magistrate could not consider the evidence on merit and try the case himself when the evidence which was led before him, if believed, would lead to the conviction of the accused but must commit the accused for trial by a Court of Session under section 207-A of the Code of Criminal Procedure. But it could not be said that the Magistrate, who is trying a case under Chapter XXI of the Code of Criminal Procedure, has to follow the procedure which is to be followed under section 207-A. Under Chapter XXI, in a case instituted otherwise than on a police report, if the Magistrate is to discharge the accused under section 253 (1), Criminal Procedure Code, he must find on the evidence taken by him under section 252 and the examination of the accused, if any, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, and he can do so only after consideration of the evidence and in order to find that no case is made out against the accused, he must apply his mind to the evidence before him. That being so, the view taken by the learned Sessions Judge cannot be justified. Then, Mr. Bhatta, appearing for the complainant, contends that, even under Chapter XXI, there is not much difference in the exercise of the power of discharge between the procedure to be followed under section 251-A i.e., the procedure to be followed by the Magistrate in cases instituted on the police report, and the procedure to be followed in cases instituted otherwise than on a police report, under section 252. And, in support of that contention, he relied upon two decisions of this Court, one in State of Mysore v. Gundappa and others1, and the other in Gangappa v. The State of Mysore2. Mr. Bhat states that if the Magistrate, while discharging an accused under section 251-A(2), cannot consider the credibility or otherwise of the statements of the witnesses placed before him, then he cannot equally consider the credibility or otherwise of the statements of the witnesses while acting under section 253(1). This submission, he seeks to support on the decision of the State of Mysore v. Gundappa and others1. But, this submission of his is obviously misconceived, because what is placed before the Magistrate in a case under section 251-A (2) is only the material in the form of the statements of the witnesses taken by the investigating officer, which is not the evidence in the case, whereas, in the case under section 253(1), what is before the Magistrate is the evidence taken under section 252. All that the Magistrate can therefore do under section 251-A (2) as stated in State of Mysore v. Gundappa1 at that stage, is to see whether, on the materials before him, he considers the charge against the accused to be groundless, whereas under section 253 (1), the Magistrate must find on the evidence before him that no case against the accused has been made out which, if unrebutted, would warrant his conviction. Thus there is a material difference in exercise of the powers by the Magistrate between section 251(a)(2) and section 253(1). Therefore, this decision does not support the contention urged by him. Then, as to the other decision Gangappa v. State of Mysore2 this Court has stated that “the procedural differences with which we are now concerned are the outcome of changes in law. They are not designed to produce inequality. The two procedures are substantially the same.” These observations were made in relation to a contention that, if the polio: are permitted to prosecute an accused in a prohibition case either under section 251-A or 252, Criminal Procedure Code, it means throwing open the door to the police to discriminate between the several accused, and his Lordship stated that the two procedures are substantially the same and are not repugnant to Article 14 of the Constitution. But this Court never intended to suggest that the power of a Magistrate to discharge an accused under sub-section (2) of section 251-A is the same as that under sub-section (1) of section 253 of the Code of Criminal Procedure. As stated already, in the former case, the Magistrate discharges the accused if the record before him discloses no basis or foundation for framing a charge, whereas under sub-section (1) of section 253, the Magistrate discharges the accused if he finds, on the evidence before him, that no case against him has been made out. Thus, under sub-section (2) of section 251-A, the Magistrate is empowered to discharge the accused if he considers, on the materials placed before him, that the charge against the accused is groundless, whereas section 253(1) states that the Magistrate must find on the evidence, before discharging the accused, that no case against him has been made out which, if unrebutted, would warrant his conviction. The discharge of the accused under sub-section (2) of section 251-A, and that under sub-section (1) of section 253 of the Code of Criminal Procedure, depends, in one case, upon the consideration of the materials placed before the Court, it considers the charge against the accused to be groundless and, in the other, upon the finding by the Court on the evidence before it that no case against the accused is made out. Therefore the contention of Mr. Bhat that the power of the Magistrate to discharge the accused under sub-section (1) of section 253, and under section 251-A(2), Criminal Procedure Code, is the same and that there is no difference, and the Magistrate cannot consider the evidence while discharging the accused under section 253(1), must fail. It is, however, contended by Mr. Bhat that this Court might consider the order of discharge on merit and set aside the same as, he states, the evidence does not warrant such a discharge. But I am not inclined to interfere with the order since, in my opinion, this is not a fit case where I should interfere with the order of discharge made by the Magistrate. Consequently, I allow this revision petition, set aside the order made by the learned Sessions Judge and restore the order made by the learned Magistrate. S.V.S. ----- Revision Petition allowed.